Citation Nr: 1333992 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-11 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for pulmonary tuberculosis. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for headaches, including secondary to Horner's disease and hypertension. 5. Entitlement to service connection for a low back disability, claimed as pain. 6. Entitlement to service connection for a sinus disorder with bronchitis, to include voice change; also claimed as maxillary sinus, and a chronic throat problem, including tonsillitis. 7. Entitlement to a compensable disability rating for bilateral hearing loss. 8. Entitlement to an increased disability rating in excess of 10 percent for residuals of hemorrhoidectomy. 9. Entitlement to a compensable disability rating for Bell's palsy, to include claimed right eye diplopia. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Veteran and his son, K.E.G. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to April 1976 and from November 1976 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2011, a videoconference hearing was held before the undersigned Veterans Law Judge. The transcript of the hearing has been associated with the claims folder. At the hearing the Veteran and his representative stated that the issues of entitlement to service connection for a sinus disorder, to include voice change, also claimed as maxilliary sinus; entitlement to service connection for a chronic throat problem including tonsillitis; and entitlement to service connection for bronchitis, should be combined as one claim. They also asserted that claimed right eye diplopia is a symptom or manifestation of the service-connected Bell's palsy, rather than a separate disorder for which service connection is being sought. As such, the issues have been recharacterized as listed above. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for a headaches; entitlement to service connection for a low back disability, claimed as pain; entitlement to service connection for a sinus disorder with bronchitis, to include voice change, also claimed as maxillary sinus, and a chronic throat problem, including tonsillitis; entitlement to an increased disability rating in excess of 10 percent for bilateral hearing loss; entitlement to an increased disability rating in excess of 10 percent for residuals of hemorrhoidectomy; and entitlement to a compensable disability rating for Bell's palsy, to include claimed right eye diplopia, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. On the record, during his Board hearing on August 5, 2011, prior to the promulgation of a decision in this appeal, the Veteran expressly withdrew his appeal of the denial of service connection for pulmonary tuberculosis. 2. The objective evidence does not establish that diabetes mellitus, type II, was incurred in or aggravated by service, nor has it been shown that is was manifested to a compensable degree within a year of the Veteran's separation from service. 3. The objective evidence does not establish that hypertension was incurred in or aggravated by service, nor has it been shown that is was manifested to a compensable degree within a year of the Veteran's separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for pulmonary tuberculosis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In July 2009, the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) relative to the issues decided herein. Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. This letter also provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished relative to the issues decided herein, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained copies of the Veteran's in-service and private treatment records, and has reviewed the evidence in the Virtual VA system. Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The Board notes that an examination regarding diabetes mellitus, type II, and hypertension was not provided. No examination is necessary, however, because there is no evidence of in-service injury or occurrence. Id.; 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In August 2011, the Veteran had the opportunity to testify before the undersigned Veterans Law Judge. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned clarified the issues on appeal, inquired as to the etiology of the Veteran's asserted symptoms, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Byrant. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the issues decided herein, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Issue Withdrawn Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. At the August 2, 2011, videoconference hearing before the undersigned Veterans Law Judge, the Veteran expressly withdrew his appeal for entitlement to service connection for pulmonary tuberculosis, as documented in the hearing transcript. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on that matter, and this issue is dismissed. III. Merits of the Claims The Veteran claims his current diabetes mellitus, type II, and hypertension are related to his military service. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, diabetes mellitus, type II, and hypertension are chronic diseases under 38 C.F.R. § 3.309(a) and are subject to the provisions governing service connection based upon continuity of symptomatology. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Diabetes mellitus, type II The Veteran testified at the August 2011 Board hearing that he was first diagnosed with diabetes in 1983 while stationed in Germany. He stated he sweat profusely, had difficulty urinating, and had to prick his finger to monitor his blood sugar. He recalled being treated at the dispensary on the military base where they told him his "sugar content was very high." The Veteran also stated he started to lose weight. He stated he was told he would not need to take insulin shots but did need continuous medication to help control the diabetes. The Veteran recalled altering his diet in 1983 and taking medication and monitoring his blood sugar since then. The Veteran's son also testified that he remembered his father sweating profusely and pricking his finger. He stated as a child he did not understand why his father was doing this. According to the in-service treatment records, there is no indication the Veteran was treated for, diagnosed with, or complained of diabetes mellitus, type II. A December 1984 treatment record indicates the Veteran was not taking any long term medication. The December 1987 Report of Medical History indicates the Veteran reported he was in good health and did not indicate he was diagnosed with, or being treated for, diabetes mellitus, type II. Furthermore, the Veteran's November 1992 Report of Medical History and Report of Medical Examination at separation are also absent of any indication he was being treated for diabetes mellitus, type II. In fact, the Veteran indicated in the November 1992 Report of Medical History that he was in good health and was not taking any medications. According to the post-service treatment records, the Veteran does have a current diagnosis for diabetes mellitus, type II. In a March 2009 treatment record from Dr. M. Cibes-Silva, a private doctor, the Veteran's diabetes mellitus was confirmed. It was described as non-insulin dependent as the symptoms started as an adult after therapy for cancer when "he lost so much weight all [medication] stop[ped] and follow[ed] the diet with carbs control." The Board notes the Veteran was diagnosed with, and treated for, cancer on the tongue. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's diabetes mellitus is not related to his military service. While the post-service treatment records suggest a current diagnosis, there is no evidence it is related to the Veteran's military service. The Veteran has not submitted any probative medical evidence to support his claim. The only evidence of record in support of the Veteran's claim consists of his own lay statements. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). His assertions that he experiences symptoms are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's diabetes mellitus, type II, is related to his military service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). The Board acknowledges the Veteran's contentions; however, as previously stated, the Veteran's service treatment records are entirely absent of any complaint, treatment, or diagnosis of diabetes. The Veteran also stated at separation he was in good health and that he was not taking any medications. The post-service treatment records indicate the Veteran's diabetes stemmed from his treatment for his non-service-connected tongue cancer, not any event or injury during service. Furthermore, there is no evidence that the Veteran's diabetes mellitus, type II, became disabling to a compensable degree within one year of separation from active duty. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's diabetes mellitus, type II, is related to any in-service disease, event, or injury. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Accordingly, the Board finds that the criteria for service connection for diabetes mellitus, type II, are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, the doctrine of reasonable doubt is not for application concerning this claim as the weight of the evidence is against it. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied. Hypertension Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater, with a diastolic blood pressure of less than 90mm. Id. Competent medical evidence showing current diagnosis for hypertension has been received. Accordingly, the remaining question is whether current hypertension is related to service. The Veteran testified before the undersigned that he was first diagnosed in 1985 while stationed in Germany and placed on medication. The Veteran stated he would feel worn out and unable to function properly. He stated that the doctors would change his medication periodically. He stated the hypertension might have been stress induced. The Veteran's in-service treatment records reflect essentially normal blood pressure readings and no diagnosis of hypertension or indication he was taking medication for high blood pressure. The Board notes that there were no instances his systolic blood pressure was 160 or greater. There were two occasion where his diastolic blood pressure was 90 or greater (110/90 in February 1986 and 130/90 in May 1990). However, throughout his active duty, the evidence does not indicate that he was treated with any hypertension controlling medication. The Board notes that a December 1984 treatment record indicates he did not have a history of high blood pressure. Furthermore, the November 1992 Report of Medical History and Report of Medical Examination at separation reflect he did not have high blood pressure and was not taking any medications. According to the post-service treatment records, the Veteran's chronic hypertension was confirmed in a March 2009 private treatment record from Dr. M. Cibes-Silva, but it was noted that it started 10 years previously. After consideration of the entire record and the relevant law, the Board finds that the Veteran's hypertension is not related to service, and service connection is not established. The medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of the hypertension and his military service. Notably, there is no indication he was treated for this disability during service. As noted, the earliest treatment of hypertension according to the record was in 1999; approximately six years after the Veteran was discharged from military service. In Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000), the Court determined that a lapse of time is a factor for consideration in deciding a service connection claim. See Maxson. Furthermore, the Board also finds that the weight of the evidence demonstrates that symptoms of hypertension were not disabling to a compensable degree within one year of separation from active duty. In sum, there is no objective medical evidence which relates his current hypertension to his military service. Nevertheless, the Board acknowledges the Veteran contentions that his hypertension is related to service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). However, the Veteran is not competent to opine on the diagnosis or etiology of his disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the etiology of hypertension is a complex medical question that is not within the competence of a layperson. See Kahana, 24 Vet. App. at 428. In arriving at this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against a finding of entitlement to service connection for hypertension; the claim is therefore denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.312; Gilbert, 1 Vet. App. at 58 (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). ORDER The claim of entitlement to service connection for pulmonary tuberculosis has been properly withdrawn from this appeal by the Veteran and this issue is dismissed. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for hypertension is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Headaches The Veteran testified at the August 2011 Board hearing that his headaches started in conjunction with his hypertension diagnosis. The Veteran stated he treated his headaches with over-the-counter medication and they currently occur two to three times per week, lasting up to six hours a day. Significantly, he stated he experienced headaches continuously since service. According to the Veteran's in-service treatment records, in January 1969 he complained of intermittent headaches on the right side of the head. The Veteran described them as throbbing pain and that they never occurred before this incident. He stated pain was worse when he bends forward. The impression noted was headaches of unknown etiology. The Board finds further development is necessary before a final determination is made based on the Veteran's lay statements of continuity of symptoms and the in-service complaint and treatment for headaches. The Veteran should be afforded a VA examination to determine the etiology of his headaches. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Low back pain Regarding the Veteran's low back disability, he testified that his pain started in 1972 while he was stationed in Germany as a mechanic. He stated his work underneath vehicles led to his back problems and physical training aggravated it. He stated he sought treatment in service and was told it was back strains. He was treated with heating pads and muscle relaxers. He stated he was treated for approximately 10 to 15 times in a two year period and was placed on light duty at one point. The Veteran testified he sought treatment from a private physician in February 1993 following separation from service. According to the in-service treatment records, the first instance of complaints of low back pain was in March 1973 when he was treated with heat and valium. In October 1974, the Veteran sought treatment on three occasions for pain in his lower back and legs. The Veteran described it as constant, dull pain, but not accentuated by normal motion. It occurred for the past five days and with unknown etiology. The record indicates he was placed on light duty and treated with analgesic balsam, heat, Tylenol, and exercise. X-rays taken at this time were negative. The Veteran was afforded a VA examination in October 2010 where he was diagnosed with lumbar degenerative arthritis. The examiner opined that it was less likely as not that the Veteran's current disability was related to back pain treated during service as no evidence was seen in the record for recurrent treatment for back pain in service. The Board finds this rationale inadequate as it is in contradiction with the evidence of record. Once the Secretary undertakes to provide an examination, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the October 2010 examination was inadequate, the appellant should be accorded a new VA spine examination. See Green, 1 Vet. App. at 124; see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). Sinus disorder with bronchitis, to include voice change; also claimed as maxillary sinus, pulmonary tuberculosis, and a chronic throat problem, including tonsillitis. According to the Veteran's in-service treatment records, it is evident that he sought treatment on numerous occasions for coughs, a runny nose, congestion, sore throat, and chest pains. The Veteran testified at the Board hearing that he had problems with his sinuses since his first tour in Germany and it has continued since. He stated he experienced congestion and a runny nose. His throat and sinuses were irritated from mucus on a daily basis. He stated is currently receiving treatment for this condition from Fort Sill and that his next appointment was in six months from the date of the Board hearing. The Board notes that these records have not been associated with the claims file. The RO must secure any outstanding records and associate them with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Given the Veteran's testimony that he is currently receiving treatment for his sinus condition at Fort Sill, these records must be obtained and associated with the claims file. Furthermore, given the new treatment records from Fort Sill, the evidence of in-service symptomatology, and the Veteran's lay testimony, the Veteran should be afforded with a VA examination to clarify the diagnosis and obtain an etiological opinion. See Green, 1 Vet. App. at 124. Bilateral hearing loss At the Board hearing the Veteran testified that his bilateral hearing loss has worsened since his last VA examination which took place in September 2009. It is currently rated as noncompensable. VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. at 381 (the Board should have ordered a contemporaneous examination of veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Since the Veteran has provided the statement which indicates that his service-connected bilateral hearing loss has worsened since the most recent VA examination in September 2009, VA is required to afford him a new contemporaneous VA examination to assess the current severity of his disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Thus, the Board must remand the issue in order to afford the Veteran another VA examination. Furthermore, the Veteran testified he underwent an examination for his hearing loss around January to March of 2010. This treatment record is not within the claims file and must be obtained prior to the new VA examination. Residuals of hemorrhoidectomy and Bell's palsy, to include claimed right eye diplopia The Veteran is currently rated at a 10 percent disability rating for his service-connected residuals of hemorrhoidectomy and a noncompensable rating for service-connected Bell's palsy. He testified describing his current symptomatology at the August 2011 Board hearing. The Veteran was last afforded a VA examination for these disabilities in January 2010; more than three years ago. As such, the Board finds that a contemporaneous examination is necessary based on the Veteran's current symptomatology. See Caffrey, 6 Vet. App. at 381; see also Allday, 7 Vet. App. at 526. Accordingly, the case is REMANDED for the following action: 1. Copies of pertinent updated treatment records should be obtained and added to the claims folder, specifically records identified by the Veteran at the August 2011 Board hearing pertaining to treatment for his sinus disorder and hearing loss. 2. Following completion of the above, schedule the Veteran for a VA examination with an appropriate specialist to ascertain the current nature and etiology of any headache disorder. After a review of the record on appeal and an examination of the Veteran, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current headache disability is directly related to service, that is, whether the current headache disability had its onset in, or is otherwise due to, service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. The examiner is also asked to address in-service incidents of headaches, particularly the January 1969 treatment indicating headaches of unknown etiology. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for a VA examination with an appropriate specialist to ascertain the current nature and etiology of any low back disorder. After a review of the record on appeal and an examination of the Veteran, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current low back disorder is directly related to service, that is, whether the current low back disorder had its onset in, or is otherwise due to, service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. The examiner is also asked to address in-service incidents of low back pain, particularly the March 1973 and October 1974 treatment records. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination with an appropriate specialist to ascertain the current nature and etiology of any sinus disorder. After a review of the record on appeal and an examination of the Veteran, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current sinus disorder is directly related to service, that is, whether the current sinus disorder had its onset in, or is otherwise due to, service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. The examiner is also asked to address in-service incidents of treatment for sinus and throat problems, as well as the Veteran's assertions that bronchitis, voice change, maxillary sinus disorder, and a chronic throat problem, including tonsillitis, are manifestations of or related to a sinus disorder. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. The Veteran should be scheduled for a VA audiological examination to determine the current level of severity of his service-connected bilateral hearing loss. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder has been reviewed. All necessary testing should be provided. The examiner should write a comprehensive report discussing the current severity of the Veteran's bilateral hearing loss, with particularity to the criteria for the appropriate diagnostic code. Furthermore, the examiner should also specifically comment on the effects of the Veteran's bilateral hearing loss on his occupational functioning and daily activities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, evidence of record, and the Veteran's lay statements. 6. Schedule the Veteran for a VA examination order to assist in evaluating the severity of his service-connected residuals of hemorrhoidectomy. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims file has been reviewed. All necessary testing should be provided. Ask the examiner to discuss all findings in terms of the pertinent diagnostic codes, particularly Diagnostic Code 7336. The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. Furthermore, the examiner should also specifically comment on the effects of the Veteran's residuals of hemorrhoidectomy on his occupational functioning and daily activities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, evidence of record, and the Veteran's lay statements. 7. Schedule the Veteran for a new VA examination in order to assist in evaluating the severity of his service-connected Bell's palsy. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims file has been reviewed. All necessary testing should be provided. Ask the examiner to discuss all findings in terms of the pertinent diagnostic codes, particularly Diagnostic Code 8207. The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. Furthermore, the examiner should also specifically comment on the Veteran's assertions of right eye diplopia as a symptom or manifestation of Bell's palsy and the effects of the Veteran's Bell's palsy on his occupational functioning and daily activities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, evidence of record, and the Veteran's lay statements. 8. Upon completion of the foregoing, review the examiners' reports to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 9. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. If any claim is not granted to the Veteran's satisfaction, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs